Los Angeles daily herald. [microfilm reel] (Los Angeles [Calif.]) 1884-1890, 1887-12-13
CITY COUNCIL.
The Election Returns
Counted in Full.
THE CERTIFICATES ORDERED.
Transaction of the Ordinary
Amount of the City's
Business,

The City Council met yesterday
morning, Mr.. l'rankeniieid in the
chair in the absence OF President
Breed and Councilmen Goss, Stcarns,
Collins, Kuhrts, Jones, Johnson, Gibbs,
Lowell, Perry, Teed. Willard and
Hitler, present. After the reading
and adoption Of the minutes, the fol-
lowing business was transacted:
Mr.. Collins moved that the Council
proceed to Canvass the votes. Car
ried unanimously.
On motion, City Attorney Days
opinion on the election was read,
received and filed as follows:
To the Honorable Council Of the city Of Los
Aageles:
GESrLEMEN:--Tn the matter of the NUM-
cipal e., elton of December 9Th, 1887, with
out reference to my opinion as to tine merits
of this question. am, in obedience to your
instructions, to furnish a written opinion as
TO the law governing such question, ard
what acton may be taken oy your Honor
preston OF the popular will aud save the
corporation from complications.
First. Assuming the fact as notorious an
undisputed that the election p dis were not
opened until after, and were closed before
the hour directed by the law, report as fol-
lows:
Section 7, Article X. OF the charter of the
city of Los Angeles provid 5 TINT the Couu-
Gil shall, bv resolution entered upon its
minutes, order the holding of all elections
Of city officers and all other elections which
may at any time be authorized by law to be
held, exclusively affecting the interests OF
the ci v.
,Councilmen are clearly within the
authority OF this section. The Board OF I'D
the Act of 1874 and by the Act of 1887:
ANY city may, at any general or special
election, elect board of fifteen freehold.
ers," etc.
must be under the provisions of the law
governing municipal elections, and thus we
have the su ject matter of the election with
in the provisions OF Section Z, Article y, OF
the charter.
The notice OF election, AS provided by said
Section, snail specify the object OF and time
and place of hul ling said election, the
names of judges, etc to be certified by the
CLERK aud published for ten DAYS in news
paper,
There is no doubt In my mind Of the suff-
Cheney OF the notice OF election, as given by
the Clerk of the Council.
In purhuaucc OF that uUtice the electors as
sembled ut the various places, and at the
time designated for holding the election,
and cast their ballots for members OF the
Council members vi the Board OF Educa-
ton, aud II Board of fifteen freehoiders.
See ion 1I6O OF the Political Guide, az
amend d bv act of 1887, require as follows:
''The polls must be opened at six on the
morning of the election, and must be kept
open until seven O'Clock ou the evening OF
the same day, when the polls shall be
closed"
Admitting that the polls were not opened
at six o'clock and that they. were closed
prior to seven O'Clock, here IL Uses the ques-
ton as To the validity of the election.
Section Il. article 10, of the City Charter,
gives to the Council power to receive aud
canvas the returns of all elections author
lied by the Charter, assuming that the pow
er TO canvass the returns win be accepted.
the remaining partitions Of section II confers
upon the uuucil exclusive jurisdiction as
to the returns, gu Il ilcation aud election Of
itsOwn memb RS and other officers elected
under this charter.
While the election of the Board of Free
holders Is authorized by any. provision OF
the charter, am convinced that the law of
1887, authorizing their election by any city.
together with the provision OF Section z of
Article 10 OF the charter OF the city, author
Iziug all other elections which may at any
other time be authorized by law 10 be held
exclusively aft ating the interests of id
city, pieces them fully Within the PROVISIONS
of Section II of Article 10 Of the chatter.
In this view vi the law, | am Of opinion that
the Council has exclusive authority To hear,
determine and declare the suificiency of the
returns the qualification and election OF the
persons voted for the various offices, ut the
municipal election held on December 9th,
1887.
II you are the Judges you certainly have
the right to hear aud determine any cyl
dence that may be presented touching the
suffieiency OF the election procedure. 1t is
within your power, upon proper evil
dence. 20 reject or accept the entire roll, or
upon the evidence or for lack of evidence to
proee, 10 CANVASS the returns and order is
sued the certificates OF election. This nu-
thOrity Is in YOU alone; and all persons in,
terested are bound bv your deci -ion. II
objection be made to the legality of The cleo
tion, You become court OF inquiry, and
the ordinary rules OF evidence apply The
question before you, and the only question,
is: Did the II g.sct to open aud ciose the
polls "a directed by the statute vltiate the
poll of December 9th. 1887.
OF all the questions arising in this coun-
try, from its foundation To the present Gay,
there is not one upon which such confusion
and nfict of opinion is presented. Courts
have held that the voice of the people Is not
70 be rejected for a defect, ii they Ii We in
truth been called upon and have spoken.
Yet the eutirc roll has been rejected. with
that d cigar box had been used as a rcceptn-
Gle for the ballo in opposition to difec,
tory clause of the statute. Courts have held
that the efficacy given to the act Of casting
n ballot is derived from the law, aud that
the provisions of the Legislature for the reg
ulatiou of elections cannot be disregaried.
Yet the eases are numerous III when the re.
, turns have been confirmed upon conceded
disregard OF all law and order. In the case
In question, however, no allegation OF fraud
eau be truthfully made, nor can 1t be said in
truth that the poll IN Monday. Dec, m1er
9th. 1887, is not u fair expression OF the
popular will. You will come, then, TO the
question Of opening and closing OF the
polls. IL
Unjust be opened at + o'clock on the morn
ing OF the day of election, and must be kept
open until o'clock on the evening OF the
same day, when the polls shall b closed.
Is this law mandatory If 1t be, yon must,
upon proper evidence, IT jert the entire poll.
Yet YOU can determine what force will be
given to the words must be opened"
Unjust be kept open, snail De closed ln
McCrary (Ameri cac Law of Elections Sec
ton I42, page 1l4) is Us follows:
III II the Is ,tute fixing The hours dnring
which the polls shall remain open expressly
render the election void, 1t must be strictly
tSl In the absence of such proviaion in
abe statute 1t VIII be Ie pnss the US 80
from the legal hours has effected the result,
il will b. disregarded
(3) ii the deviation from the iegai hours
Is great, or even considerable, the pfesump
tion will be that 1t has effected the result,
and the burden will be upon him VINO seeks
to uphold the election to show atilrmatlvely
that it has not; but II the devlatiou iroih .ue
legal hours is but slight, the presumption
will be that it has not affected the result,
mad the burden will be upon him VINO at
tacks the validity OF the election TO show
Automatically the contrary
In the people az inst Cook Is New YORK,
67) 1t was held that II statute requiring the
D lis TO open at sunrise and to be kept open
until the setting of the sun, Is SO TAI dlrec-
tory that, before an election can be set aside
because of deviation from the statute IN
this respect it must be shown that legal
votes were excluded.
It was held in Pennsylvania that where
the law required the polls to be kept open
until 10 O'Clock and they were closed ut 3,
the election must be set aside.
And SO II thew be opened at a much later
hour than the time prescribed by law. Cad
wick VS.. Mclvill. Brightley's election cases
lBo m ir the polls to omen az 8 a. NJ; they
did not, in fact. open until 2P. M
In the People against Seale So Cal. $40,
The Court hold Where the polls were
a-onod ut ! O'Clock NJ. and ka Mt ppQu II H.